Sincere Terry, et al. v. Gentner Drummnd, at al.

Oklahoma City, Oklahoma criminal defense lawyer represented the Appellants.

¶3 The Court of Appeals certified the following additional four questions for our consideration and we respond pursuant to the Uniform Certification of Questions of Law Act. See 20 O.S.2021, § 1601 et seq.:

1. If § 1311 does require the State in a threats prosecution to prove a defendant had a mens rea of willfulness, see 2025 OK CR 11, ¶¶ 6-7, does "willfulness" mean that, under Oklahoma law, a defendant must have at least "consciously disregard[ed] a substantial and unjustifiable risk" that "others could regard his statements as threatening violence"? See Counterman v. Colorado, 600 U.S. 66, 78-82 (2023).

2. The OCCA's opinion states "the crime of riot . . . relates to and prohibits certain defined conduct rather than forms of expression." 2025 OK CR 11, ¶ 10 (quoting State v. Bad Heart Bull, 257 N.W.2d 715, 722 (S.D. 1977)). Does this mean § 1311 does not cover speech at all?

3. Does "any threat to use force or violence" in § 1311 cover only "true threats"? True threats are "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359 (2003).

4. The OCCA's opinion states that § 1311 requires "mutual or common intent" along with "immediate power of execution," which together "substantially produce the same effect" as requiring proof a defendant "consciously disregarded a substantial risk." 2025 OK CR 11, ¶ 8. How do these other requirements satisfy Counterman's mandate that the State in a threats prosecution must prove a defendant's subjective intent of recklessness?

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¶6 In answering Certified Question 1, we again decline to hold that Counterman requires proof of additional elements to prove a violation of Section 1311. This is because, unlike the Colorado statute at issue in Counterman, Oklahoma's riot statute does not require a judicially-recognized mens rea to avoid constitutional peril because it is not directed at pure speech. Prosecutions brought pursuant to Section 1311 are not threats prosecutions in the Counterman sense; they are riot prosecutions which can include an element of threats to use force or violence, i.e., speech, but only when accompanied by other elements integral to the crime of riot.

¶18 We therefore hold:

1. Counterman is inapplicable in a riot prosecution under 21 O.S.2021, § 1311. The State must prove the defendant acted willfully pursuant to 21 O.S.2021, § 92. Counterman's holding that the State must prove the mens rea of recklessness in a threats prosecution is not controlling because, inter alia, satisfying the other elements in a Section 1311 riot prosecution proves more than conscious disregard of a substantial and unjustifiable risk that the statements could be regarded as threatening violence.

2. Section 1311 covers speech although not in the same way statutes penalizing pure speech do.

3. The "threat" referred to in Section 1311 does not cover only "true threats". The threat is integral to the criminal activity of riot and not protected by the First Amendment irrespective of true threat analysis.

4. Prosecutions under Section 1311 are not threats prosecutions which target and rely upon the content of the defendant's speech for conviction. Satisfaction of all the elements of riot supports a finding the defendant acted, at least, with the recklessness required by Counterman, the inapplicability of Counterman notwithstanding.